Paige v. Chedsey — 49 N.Y. St. Rep. 878

Majority

p. 878

David S. Paige, App’lt, v. Nathan A. Chedsey et al., Resp’ts.

(City Court of New York, General Term,

Filed December 7, 1892.)

Headnote

1. Verdict—Presumptions.

The presumption is that a jury, in the proper'discharge of its duty, followed the instruction of the court, especially where the verdict is for the identical amount named in the charge.

3 Same—Jurors cannot be heard to impeach.

Jurors cannot be heard by affidavits or otherwise to impeach their verdict.

Appeal from an order made at special term, on September 27, 1892, denying a motion made on the part of the plaintif f. That the court take such proceedings as in its discretion it may deem advisable, to inquire into the matter in question, and to set aside the verdict herein, and direct a new trial,” and for other relief.

Louis J. Grant, for app’lt; Henry M. Norton, for resp’ts.

The trial in above action was had at a trial term, held in January, 1892, there being but two issues before the jury. . !

. First. Was the plaintiff entitled to recover the sum of $475, the amount claimed ?

Second. Was there the special agreement between the parties as to the ejectment suit following the action for the award as set up m the counterclaim?

The trial resulted in a verdict for defendants in the sum of .$5,639.54, the amount set up in defendant’s answer as a counterclaim, the sum admitted by the plaintiff’s attorney upon the trial to be the value of the services claimed by defendants, in case the jury found that the defendants were entitled to recover upon such counterclaim.

The jury, by their verdict, disallowed plaintiff’s claim, finding that the defendants were not indebted to the plaintiff in the sum of $475, as claimed in plaintiff’s complaint.

Upon the trial, the court, among other questions left by it to the jury, charged, at the request of plaintiff’s attorney, as follows :

Third. Before the jury can find a verdict for the defendants, they must find that the plaintiff agreed on November 11, 1886, to pay them a proportionate sum in the ejectment suit, namely, $5,639.54. _ ,

_ , The attorney for the plaintiff, in his moving affidavit, claims that the jury did not consider at all the directions of the trial justice, above cited.

The presumption is that the jury, in its proper discharge of its duty, followed the instruction of the court, and it is clear that it

p. 879

followed such instructions from the fact that it rendered its verdict (after disallowing plaintiff’s claim) for the identical amount named by the trial justice in his charge, and thus found that the plaintiff made the agreement referred to in the charge.

The affidavits of the jurors attached to plaintiff’s moving papers were evidently disregarded by the justice before whom the motion was made, and properly so, as the principle is well established that jurors cannot be heard by affidavits or otherwise to impeach their verdict. See Clum v. Smith, 5 Hill, 560 ; Williams v. Montgomery, 60 N. Y., 648 .

Order appealed from must be affirmed, with costs to the respondents.

Van Wyck and McCarthy, JJ., concur.